The download is also available at: https://lnkd.in/gy9WPZ_t The slides attached were presented at a workshop held on 2nd November 2022, at Rikkyo University, Tokyo. I attempted to give an overview of the two East Asian competition rules, MRFTA (KR) and AMA (JP), and compare some details, putting the most focus on the prohibition of abuse of economic dependence (a.k.a. superior bargaining position). Based on the theoretical analysis, then I reviewed two digital dependency cases from Korea, Delivery Hero (2020) and Coupang (2021), and reviewed them from a comparative perspective with Japan's approach. Through this comparative research, I tried to figure out some insights applicable to both jurisdictions and then cast some questions worth pondering to find an optimal level of the enforcement of the dependency rules, i.e., abuse of economic dependence / superior bargaining position.

1. Abuse of EconomicDependence / SuperiorBargainingPosition
in Korean Competition Law
: From a Comparative Perspective with Japan
1
Sangyun Lee
Research Fellow (Ph.D. Candidate) at Korea University
Rikkyo University, Tokyo, 2 November 2022
I sincerely thank Prof. Masako Wakui and Dr. Shin-ru Cheng for their invaluable comments and all the discussions we had about East Asian competition laws, which
were indeed very insightful and fruitful. Also, I extend my thanks to Prof. Yuichiro Hayakawa for his comments and suggestions. Any remaining errors are my own.

2. 2
BACKGROUND

3. Some Basics1 and Beyond
• Modern Competition Law
• A public policy measure to maintain the pro-competitive market economy sensu lato
by means of a form of public intervention (alongside the possibility of private litigation)
against anti-competitive practices based on ex-post effect analysis.
• Competition Law’s concerns
• Foreclosure, basically – e.g., Art 101, 102, TFEU ; Section 1, 2, Sherman Act
• Rationale: If efficient competitors are forced out of the market by the exclusionary practices of
an incumbent(s), the incumbent(s) will be capable of exploitation. External constraint on contract
• When to intervene depends on what perspectives or theoretical postures put forward
3
Competitive
Market
☺
Anti-competitive
Conduct
🤜🤜
Market
Foreclosed
🤒🤒🤕🤕
Customer
Exploitation
☠
1. Sangyun Lee, ‘A Theoretical Understanding of Abuse of Economic Dependence in Competition Law’ (SSRN Jun 2022) https://ssrn.com/abstract=4134583 (“Lee (2022)”), pp.8-13.
For further references, see Bakhoum (2015); Cseres (2011); Kovacic & Winerman (2010); Botta (2021); Gal (2013).

4. Some Basics and Beyond1
• Some expanded (or modified or adapted) approaches (esp. in unilateral conduct)
• Expansion of ABUSE – e.g., direct exploitation (without exclusion), predation
• Expansion of POWER – e.g., economic dependence, “partenaire obligatoire”
• Furthermore, some expansions incorporating unfair practices, such as
– unfair competition ( Art. 3, Ley 15/2007; Article 3^1, LEGE nr. 11)
– unfair trading practices ( Sec. 5, FTC Act; Art. 19, AMA; Art.45, MRFTA)
– unconscionable conduct ( Sec. 21, ACL (Quantum))
• Additionally, the market investigation tools ( …)
• On condition that their structural impacts are tantamount to the market distortion2
• E.g., relevance to competition or public interest, impacts on competition or trade order
…
4
1. This slide is based on Lee (2022), pp.44-55.
2. For further theoretical analysis of the harm of exploitative and/or economic dependence abuse, see Patrice Bougette, Oliver Budzinski, and Frédéric Marty, ‘Exploitative Abuse and
Abuse of Economic Dependence: What Can We Learn From an Industrial Organization Approach?’ (2019) 129(2) Revue d'économie politique 261.

5. Japan & Korea Comp Laws
• Main statutes
• ActonProhibitionofPrivateMonopolizationandMaintenanceofFairTrade(‘AMA’)(1947-)
MonopolyRegulationandFairTradeAct(‘MRFTA’)(1986-)
• Main prohibitions
• Anti-competitive agreements; decisions of associations; and vertical restraints
• Abusive or monopolizing practices by wielding substantial market power
• Also, exploitative practices and unfair trading practices, incl. abuse of economic dependence
• Conceptual dichotomy of harm (illegality) (Dichotomy? Trichotomy?)
• Restraint on competition – e.g., exclusionary effects, lessening competition, consumer surplus ↓
• Unfairness – e.g., exploitative, coercive, and unconscionable nature and ramifications
5

6. 6
Navigating Korea & Japan Comp Laws (provisional)
TYPE CONDUCT 🇰🇰🇰🇰 MRFTA 🇯🇯🇯🇯 AMA1
Horizontal restraint
(Sec. 1 Sherman Act;
Art. 101 TFEU)
Horizontal agreements and concerted practices Art. 40(1)RC Art. 3 with Art. 2(6)RC
Group boycott (UTPs)2 Art. 45(1)(1) with ED3 1(1)RC Art. 19 with Art 2(9)(i)
Art. 19 with GD4 1
Decision of associations of undertakings Art. 51(1)RC Art. 8RC
Vertical restraint
(Sec. 1 Sherman Act;
Art. 101 TFEU)
Tying (UTPs) Art. 45(1)(5) with ED 5(1)RC(UF) Art. 19 with GD 10RCUF
RPM (UTPs) Art. 46RC Art. 19 with Art. 2(9)(iv)
Sales restrictions (UTPs)
(exclusive dealing, exclusive distribution agreements, restrictions
on active selling, customer allocation agreements, etc.)
Art. 45(1)(7) with ED 7 (1)-(2) RC(UF) Art. 19 with GD 11-12
Unilateral conduct
Abuse of dominance (Art. 102 TFEU) or Monopolization (Sec. 2
Sherman Act)
Art. 5(1)RCUF Art. 3 with Art. 2(5)RC
Abuse of economic dependence (UTPs) Art. 45(1)(6) with ED 6UF Art. 19 with Art. 2(9)(v)
Art. 19 with GD 13
Other UTPs2
Discrimination Art. 45(1)(2) with ED 2(1), (2), (4)RC Art. 19 with Art. 2(9)(ii)
Art. 19 with GD 3-5
Predation (High/Low) Art. 45(1)(3) with ED 3(1)-(2)RC Art. 19 with Art. 2(9)(iii)
Art. 19 with GD 6-7
Unfair (unilateral) refusal Art. 45(1)(1) with ED 1(2)RC Art. 19 with GD 2
Unfair inducement
(aggressive/misleading/deceptive)
Art. 45(1)(4) with ED 4UF Art. 19 with GD 8-9UF
Unfair interference Art. 45(1)(8) with ED 8UF Art. 19 with GD 14-15UFRC
1. This Section has been made heavily relying on Masako Wakui, Antimonopoly Law: Competition Law and Policy in Japan (2nd edn, 2018), pp.141-142.
2. UTPs: Unfair Trading Practices. Specifically, “other UTPs” only indicate unfair practices that do not belong to other types of conduct.
3. ED: Enforcement Decree of the MRFTA, which sets out specific types and standards of UTPs pursuant to Art. 45(3) (See Table 2, Art. 52, Decree).
4. GD: UTPs designated by the JFTC (pursuant to Art. 2(9)(vi) AMA), which are generally applicable across sectors.
RC: Restraint on Competition
UF: Unfairness

7. 7
ABUSE OF ECONOMIC DEPENDENCE
(aka. Superior Bargaining Position)

8. A Theoretical Understanding of E. Dependence
• Perceptions on power: ‘Power-to’ and ‘Power-over’ 1
• Morris (2002) ‘power is a dispositional concept and refers to the capacity to effect (i.e.,
accomplish) outcomes, rather than an ability to affect other people (i.e., alter their conduct).’
• Emerson (1962) ‘to say that X has power is vacant, unless we specify “over whom”’; ‘“the
power of A over B is equal to, and based upon, the dependence of B upon A.”’
• Contractual or Regulatory Protection ≠ Competition Law
8
in Civil law or regulatory frameworks in Competition law frameworks
Power differences or imbalances Significant power differences or imbalances
Situational, sector-specific, or party-specific harm Structural, cross-sector, and ubiquitous harm
substantial market power; dominance; or monopolistic position
relative/superior market power; relative dominance; economic dependence; or superior bargaining position
1. Lee (2022), pp.16-18; Ioannis Lianos, Claudio Lombardi, Justin Lindeboom, and Christina Kanakari, ‘Superior Bargaining Power and Boundaries of Competition Law’ in Ioannis
Lianos (ed), Global Food Value Chains and Competition Law BRICS Draft Report (2017-2018), pp.378-379.

9. Key Questions and Considerations1
• Key questions to bear in mind when assessing AED/ASBP in competition law:
• How to identify and discern superior/relative market power and abuse
• How to distinguish anti-competitive relativity from a mere bargaining asymmetry
• How to distinguish market failure from a contract/bargaining failure
• Economic dependence2:
1. External focus: the objective absence of feasible alternatives; and
2. Internal focus: the importance of the transaction in the weaker’s business
* Various factors: market structure (e.g., competitive bottlenecks), characteristics of products/services (e.g., perishability,
scarcity, relevance to health), the importance (or essentiality) of the technology, know-how, or infrastructure owned by the
superior incumbent, the incumbent’s brand power or reputation in the market, and customer behavioral patterns (e.g., brand
loyalty, switching, or consumption path dependence), a gross disparity in business capabilities between parties, etc.
• Abuse: Whether exploitative or exclusionary, harm must be consequential, far-reaching
9
1. Lee (2022), pp.52-56.
2. See
Masako Wakui and Thomas K. Cheng, ‘Regulating Abuse of Superior Bargaining Position under the Japanese Competition Law: an
Anomaly or a Necessity’ (2015) 3(2) Journal of Antitrust Enforcement 302, pp.305-306.
Cour de Cassation, Chambre commerciale, du 3 mars 2004, 02-14.529 and Bundesgerichtshof Beschluss vom Jan 23, 2018, EDEKA v Bundeskartellamt, KVR 3/17,
DE:BGH:2018:230118BKVR3.17.0, paras 40-51;

10. A Typology of E. Dependence Rules
• Legislation models 1
• How to implant the concept of abuse of economic dependence?
- Within the dominance framework
(i) Exploitative abuse of dominance (e.g., Art. 102(a))
- Outside the dominance/monopolization framework
(ii) Stipulated separately but operated in close proximity to the dominance rule
(iii) Stipulated and operated independently, based on the fairness doctrine
• Differences between (ii) and (iii)
• Fairness and exploitative concerns are more relevant to (iii) than (ii)
• (iii) gives more leeway, if not a bypass, to enforcement authorities
• Japan or Korea is the case in point.
10
1. See, Lee (2022), pp.44-55.

11. Abuse Control in Korea & Japan
11
🇰🇰🇰🇰 공정거래법 🇯🇯🇯🇯 独占禁止法
Art. 5(1) RC UF 시장지배적지위의 남용금지 Art. 3 with Art. 2(5)RC 私的独占の禁止
Art. 45(1)(6) with ED 6UF
(거래상 지위의 남용)
Art. 19 with Art. 2(9)(v)UF
Art. 19 with GD 13UF
(優越的地位の濫用)
Art. 45 불공정거래행위의 금지
Art. 45(1)(6)
자기의 거래상의 지위를 부당하게 이용하여 상대방과 거래하는 행위
ED 6.
거래상 지위의 남용
가. 구입강제
거래상대방이 구입할 의사가 없는 상품 또는 용역을 구입하도록 강제하는 행위
나. 이익제공강요
거래상대방에게 자기를 위해 금전 · 물품 · 용역 기타의 경제상 이익을
제공하도록 강요하는 행위
다. 판매목표강제
자기가 공급하는 상품 또는 용역과 관련하여 거래상대방의 거래에 관한 목표를
제시하고 이를 달성하도록 강제하는 행위
라. 불이익제공
구입강제, 이익제공강요, 판매목표강제 외의 방법으로 거래상대방에게 불이익이
되도록 거래조건을 설정 또는 변경하거나 그 이행과정에서 불이익을 주는 행위
마. 경영간섭
임직원을 선임·해임함에 있어서 자기의 지시 또는 승인을 얻게 하거나
거래상대방의 생산품목·시설규모·생산량·거래내용을 제한함으로써 경영활동을
간섭하는 행위
Art. 19 with Art. 2(9) 不公正な取引方法の禁止
Art. 2(9)(v)
自己の取引上の地位が相手方に優越していることを利用して、正常な商慣習に照らし
て不当に、次のいずれかに該当する行為をすること。
イ 継続して取引する相手方（新たに継続して取引しようとする相手方を含む。ロにおい
て同じ。）に対して、当該取引に係る商品又は役務以外の商品又は役務を購入させ
ること。
ロ 継続して取引する相手方に対して、自己のために金銭、役務その他の経済上の利
益を提供させること。
ハ 取引の相手方からの取引に係る商品の受領を拒み、取引の相手方から取引に係
る商品を受領した後当該商品を当該取引の相手方に引き取らせ、取引の相手方に
対して取引の対価の支払を遅らせ、若しくはその額を減じ、その他取引の相手方に
不利益となるように取引の条件を設定し、若しくは変更し、又は取引を実施すること。
GD 13
（取引の相手方の役員選任への不当干渉）
自己の取引上の地位が相手方に優越していることを利用して、正常な商慣習に照らし
て不当に、取引の相手方である会社に対し、当該会社の役員（法第二条第三項の役員
をいう。以下同じ。）の選任についてあらかじめ自己の指示に従わせ、又は自己の承認
を受けさせること。

12. E. Dependence Rules in Korea & Japan (EN)
12
🇰🇰🇰🇰 MRFTA 🇯🇯🇯🇯 AMA
Art. 5(1) RC UF Prohibition on Abuse of Market-Dominant Position Art. 3 with Art. 2(5)RC Prohibition on Private Monopolization
Art. 45(1)(6) with ED 6UF Art. 19 with Art. 2(9)(v)UF
Art. 19 with GD 13UF
Art. 45 Prohibition on Unfair Trade Practices
Art. 45(1)(6) (Source: Korea Legislation Research Institute https://bit.ly/3TtOsEo)
Trading with a certain transacting partner by unfairly taking advantage of his/her
position in trade
ED 6. (Source: Korea Fair Trade Commission https://bit.ly/3s2AI81)
Abuse of the Position
A. Forced Purchase: conduct in which an undertaking forces its trading
counterparty to purchase goods or services against the will of the counterparty
B. Forced Provision of Benefit: conducts in which an undertaking forces its
trading counterparty to provide money, goods, and services or other financial
benefits for the welfare of the undertaking in question
C. Imposing Sales Target: conducts in which an undertaking sets a sales target
on the goods or services it supplies and forces its trading counterparty to meet
the target
D. Imposed Disadvantages: conducts in which an undertaking imposes
disadvantage to its trading counterparty by setting or a changing terms
of trade or in the execution of the trade, through means other than
forced purchase, forced provision of benefits or imposed sales target
E. Interference with Business Management and Operations: conducts in which
an undertaking interferes with management and operations of its trading
counterparty by imposing restriction on items manufactured, scale of facilities
and equipment, quantity of manufacture, and terms of trade, or by giving order
or approval for appointment or dismissal of staff and executives
Art. 19 with Art. 2(9) Prohibition on Unfair Trade Practices
3. Art. 2(9)(v) (Source: Japan Fair Trade Commission https://bit.ly/3Sgy8Wq)
engaging in any act specified in one of the following by making use of one's
superior bargaining position over the counterparty unjustly, in light of normal
business practices
(a) causing the counterparty in continuous transactions (including a party with
whom one newly intends to engage in continuous transactions; the same
applies in (b) below) to purchase goods or services other than those to which
the relevant transactions pertain
(b) causing the counterparty in continuous transactions to provide money,
services or other economic benefits
(c) refusing to receive goods in transactions with the counterparty, causing the
counterparty to take back such goods after receiving them from the
counterparty, delaying payment to the counterparty or reducing the amount of
payment, or otherwise establishing or changing trade terms or executing
transactions in a way disadvantageous to the counterparty
GD 13 (Source: Japan Fair Trade Commission https://bit.ly/3eIM3qI)
(Unjust Interference with appointment of officer in one's transacting party)
(13) Causing a corporation which is one's transacting party to follow one's
instruction in advance, or to get one's approval, regarding the appointment of
officers of the said corporation (meaning those as defined by Article 2,
paragraph (3) of the Act (The same shall apply hereinafter)) , unjustly in light of
the normal business practices by making use of one's dominant bargaining
position over the party.

13. A Question Worth Pondering…
• Despite the similarities and commonalities of the two rules,
why are the actual enforcement practices of the two enforcers* different?
* KFTC (allegedly, over-enforcement) ≠ JFTC (allegedly, under-enforcement)
Note. The KFTC is often accused of overly active and vigorous law enforcement activities in terms of not
only quantity (the number of infringement cases) and quality (the amount of fines –up to 4% (UTPs &
RPM), 6% (dominance), or 20% (cartels) – and criminal referrals, etc.)1
• Maybe because of the cultural differences? (esp after the 1998 financial crisis in Korea)
• Are there more political pressures on the KFTC, than on the JFTC?
• Maybe because of some institutional differences? (2-tier & 3-tier judicial review systems)
• Are there any differences in the motivation and incentives of public officials?
…
13
1. For pecuniary fines, see, Art 50(1), Art. 8, and Art. 43 of the MRFTA. See also, Art. 125(4), Arts. 124(1)(1) and (9), MRFTA, for the legal basis of the criminal penalties. Please note
that in the case of UTPs, the restricting-competition-type practices are not criminalized. Only ‘unfair’ UTPs (i.e., Art. 45(1) subparagraph (4)(5)(6) and (8)) are subject to the penalties.

14. 14
PRINCIPLES & STANDARDS

15. Established Case Law in Korea
• Relevant factors in assessing ASBP under the MRFTA
• Position in Trade (去來上地位)
• Trade (去來) – ‘Trade’ is more than a mere contract as such1 (e.g., insurer – an injury victim)
• Position (地位) –
“the legislative intent … the enterpriser of comparatively advantageous position should be prohibited
from giving the other party transactional disadvantage by abusing his position, thus it establishes a fair
trade between transactional parties who are differently situated economically.” (Pasteur Dairy) 2
“When determining whether a position is advantageous, the following factors should be considered:
market conditions, the differences between the parties' abilities to conduct business, and the
characteristics of the goods which are the object of transaction” (Pasteur Dairy)
For the ‘position in trade’ to be recognized, it is sufficient to show that one has a relatively superior
position or is in a position that can have a significant influence on transactional activities with others 3
15
1. Supreme Court Decision 2008Du14739 delivered on Jan 14, 2010 (Court’s translation: the term ‘trade’ “should be regarded as the general means or trade order to engage in business
activity rather than an individual sales contract”).
2. Supreme Court Decision 97Nu19427 delivered on June 9, 2000 (Pasteur Dairy) https://library.scourt.go.kr/SCLIB_data/decision/97Nu19427.htm
3. Supreme Court Decision 2003Du1646 delivered on June 29, 2006, etc.

16. Established Case Law in Korea
• Relevant factors in assessing ASBP under the MRFTA
• Position in Trade (去來上地位)
• Harm (不利益); Unfairness (公正去來沮害性; 不公正性)
• “To determine whether a behavior of a party resulted in a transactional disadvantage to the other
party by using his position, we should consider the factors such as intention, objective, effect and
influence of the behavior, characteristics of the goods, situation of transaction, degree of the
prevailing position of the enterpriser, and contents and degree of disadvantage of the other party …
whether there was a deviation from the practice of normal transaction and whether it may impede a
fair trade” (Pasteur Dairy) 1
• “the fact that the relevant act is [somewhat] disadvantageous to the other party is not enough” to
constitute abuse (S-OIL) 2
16
1. Supreme Court Decision 97Nu19427 delivered on June 9, 2000 (Pasteur Dairy) https://library.scourt.go.kr/SCLIB_data/decision/97Nu19427.htm
2. Supreme Court Decision 2010Du25909 delivered on April 25, 2013 (S-Oil).

17. Established Case Law in Korea
• Relevant factors in assessing ASBP under the MRFTA
• Relevance to Competition order (“競爭秩序”) or transactional (trade) order (“去來秩序”)1
• “[Art. 45(1)(6)] should be seen as a provision that … prevents unfair trade practice from a public
regulatory standpoint in order to establish fair trade or competition order.”
• “[Art. 45(1)] requires relativity with trade [order] or competition order” by interpretation.
• “… in cases [of ASBP against] a general consumer rather than a competitor or business operator,
such act should be interpreted to include … from a [wider] perspective (i.e., impact on trade order),
acts that may likely damage unspecified number of consumers stemming from a business operator
taking advantage of one's position and/or acts that [may] undermine fair trade order stemming from
continuous and repetitive acts of unfair trade practice.” “Therefore, the relativity with trade order
should be first acknowledged in order to deem that this case's act may likely hurt fair trade.”
• “the Plaintiff’s fault in forming personal trade relationship with certain members … is insufficient
to acknowledge [the relativity and harm to fair trade].” (Geumbo Development)
17
1. Supreme Court Decision 2012Du18325 Decided September 10, 2015 (Geumbo Development) https://library.scourt.go.kr/SCLIB_data/decision/08-2012Du18325.htm

18. Established Case Law in Korea
• Relevant factors in assessing ASBP under the MRFTA
• Relationship with the prohibition of abuse of dominance
• Each provision operates independently and can be applied concurrently.
• “An act of refusing a transaction where a market dominating enterprise status exists as stipulated
under subparagraph 3 of [Article 5] of the [MRFTA] is different from an act of unfair transaction
under subparagraph 1 of [Article 45 (1)] of the [MRFTA] in its objectives and its scope. Thus, the
meaning of [unjustness (不當性)] in a transaction refusal by a market dominating enterprise must
be evaluated or interpreted independently and separately from the [unjustness (不當性)] of a
transaction refusal as a type of unfair transaction stipulated under [subparagraph 1 of Article 45 (1)]
of the [MRFTA].” 1
18
1. Supreme Court Full Bench Decision 2002Du8626 Delivered on November 22, 2007 (Posco) https://bit.ly/3TBq9VC.

19. Comparison of the KFTC & JFTC approaches
19
🇰🇰🇰🇰 공정거래법 🇯🇯🇯🇯 独占禁止法
Unfair Trading Practices Guidelines (2021) Guidelines Concerning ASBP under the AMA (2010)
Position
Differentiating ASBP from civil law issues
- Much stricter standards will be applied than those applicable to bargaining
power imbalances under the Korean Civil Act (Ⅴ. 6. (1))
- If parties were well informed and had a choice at the time of engaging in the
contract, the ASBP is not applicable (Ⅴ. 6. (2) (가))
Considerations (Ⅴ. 6. (3))
- Continued relationship: transaction-specific investments; lock-in; already
invested capitals
- Significant dependency: the proportion of sales to the stronger party in the
total sales of the weaker party
- Market status, characteristics of products/services, etc.
(LSY) Countervailing market power? Outside option? Feasible alternatives?
Basic principle
- When the weaker cannot help but accept the superior’s request, which is
substantially unfavorable to the weaker because the suspension of the
transaction with the superior would substantially impede the weak’s business
(第2-1)
Considerations (第2-2)
- Dependency: the portion of the weaker’s sales to the superior’s sales in the
total sales of the weaker party.
- Market position of the superior: market shares, ranks, etc.
- Possibility for the weaker to switch trade partners: any feasible alternatives,
transaction-specific investments, etc.
- Necessity of the transaction with the superior: the volume of existing
transactions with the superior, the superior’s growth, the importance of the
products/services in question (brand power), the possibility of increased
credit/trust through transactions with the superior, differences in size, etc.
Causality Presumed (第2-3)
Abuse
(Harm)
Restrictions on economic freedom
- Illegality: “substantive unfairness (거래내용의 불공정성)” which means an
impairment of the other trading party’s freedom of decision-making or
imposing disadvantages (Ⅲ. 1. 가. (2). (라) and Ⅴ. 6. (4))
- Considerations: intent, predictability, prevailing custom or practice, legal
context, etc. (Ⅴ. 6. (4) (다))
- Balancing (limited): outweighing efficiency gains or consumer benefits (Ⅴ. 6.
(4) (라))
Restrictions on economic freedom
- Illegality: Impeding transactions based on the parties’ free and autonomous
decisions AND placing victims at a competitive disadvantage while giving
perpetrators a competitive advantage (第1-1)
- Considerations: the severity of the disadvantage at issue, the
extensiveness of the act, the largeness of the number of victims, systemic
violations, ramifications of conduct (第1-1), and being against the prevailing
(legitimate)* custom or practice (第3).
* In light of the “fair competition order” (第3)

20. Miscellaneous…
• (at Ⅴ. 6. (1) of the KFTC guidelines) 사업자가 거래상 우월적 지위가 있음을 이용하여 열등한
지위에 있는 거래상대방에 대해 일방적으로 물품 구입강제 등 각종 불이익을 부과하거나
경영에 간섭하는 것은 경제적 약자를 착취하는 행위로서 거래상대방의 자생적 발전기반을
저해하고 공정한 거래기반을 침해하므로 금지된다. 다만, 거래상지위 남용행위는
거래상지위가 있는 예외적인 경우에 한하여 민법의 불공정성 판단기준을 사업자간
거래관계에서 완화한 것이므로 거래상지위는 민법이 예상하고 있는 통상적인 협상력의
차이와 비교할 때 훨씬 엄격한 기준으로 판단되어야 한다.
• (machine translation) 事業者が取引上優越的地位があることを利用して劣等な地位にある取引
相手に対して一方的に物品購入強制など各種不利益を賦課したり経営に干渉することは経済
的弱者を搾取する行為であり取引相手の自生的発展基盤を阻害し公正な取引基盤を侵害する
ため禁止される。ただし、取引上の地位乱用行為は取引上の地位がある例外的な場合に限り、
民法の不公正性判断基準を事業者間の取引関係で緩和したものであるため、取引上の地位は
民法が予想している通常の交渉力の差と比較すると、はるかに厳格な基準で判断されなければ
ならない。
20

21. 21
CASE STUDY:
AED/ASBP in Digital Markets

22. Case Study 1: Delivery Hero (2020)
• Addressee Delivery Hero, providing an online food-delivery service company
operating a food-delivery app Yogiyo in Korea
matching consumers and restaurants (also couriers)
• Competitors Baedal Minjok (by Woowa Brothers)
Baedaltong (by Baedaltong (Delivery Hero’s subsidiary))
• Structure (shares by volume of sales for each of them)
22
(Source: Korea Investors Service, as cited in the KFTC’s Press release)
2015 2016 2017
Baedal Minjok 55.0% 61.6% 64.5%
Yogiyo 26.3% 26.5% 26.7%
Baedaltong 18.7% 11.9% 08.8%

23. Case Study 1: Delivery Hero (2020)
Baedal Minjok
Yogiyo
Baedaltong
Restaurants
Tendency to single-home; “lock-in” (¶19)
Asymmetry
- used several platforms at the same time (¶20)
- the importance of the delivery apps in
restaurants’ sales (circa 35%↑) (¶¶20-23)
Competitive
Bottleneck
Consumers
Consumers
Consumers
23
• Structure
Lowest-price-guarantee program (¶26)
- imposed parity obligations via T&C (¶38)
- penalized non-compliance (¶36)
- lasted 5 years (2013-2017) (¶27)

24. Case Study 1: Delivery Hero (2020)
The KFTC’s Decision of 24 August 2020, No. 2020-251 (LINK)
• Position (superior bargaining position)
1. Continued relationship (“繼續的 去來關係”) (¶46)
• Significant increase in consumers using Yogiyo; a considerable number of the consumers tending to
single-home; the continued relationship with the platform and restaurants.
2. Significant dependency (“相當한 去來依存度”) (¶47)
• Benefits of increasing brand visibility in delivery apps; Yogiyo’s 2nd largest share in the market1; the
necessity of multi-homing (i.e., competitive bottleneck); the continued growth of the portion of
delivery sales generated via the app Yogiyo in the business users’ total delivery sales2.
3. Absence of (feasible) alternatives (“充分한 代替去來先” 不在) (¶48)
• Single-homing consumers & multi-homing businesses (competitive bottleneck); (indirect) network effect
(¶9); difficulties in securing the same number of consumers within a short-term period of time in the
case of termination of the business relationship with Delivery Hero (Yogiyo)
4. Significant difference in business capabilities (“全體的 事業能力의” 相當한 “隔差”) (¶49)
• Size. Most restaurants were SMEs, while Delivery Hero (Yogiyo) was a large company
24
1. The figure is concealed.
2. The figure is concealed but can be estimated at about 10-20% based on the survey result in note 48.

25. Case Study 1: Delivery Hero (2020)
• Abuse (Re. unfairness (“公正去來沮害性”))
• Type: interference with other’s operating activities (“經營干涉” at Guidelines V. 6. E.)
1. Restriction on the restaurants’ freedom to set prices (¶52).
• Restaurant business operators shall be able to autonomously determine food prices and service
items accordingly, taking into account the differences in related costs and consumer features by
distribution channel. Delivery Hero restricted such freedom.
2. Against the principle of “the beneficiary pays” (¶53).
• Delivery Hero, the beneficiary of the price parity program, foisted the costs upon the restaurants,
the non-beneficiaries, to implement the program 1
3. Neither an ancillary restraint for the provision of the delivery service
nor a prevailing custom or practice (‘通常的 去來慣行’) in the industry (¶54)
• The leading app, Baedal Minjok, did not adopt such a price parity program
25
1. See note 51. The KFTC saw that the total amount of demands remained the same because the increase in orders through Yogiyo due to the parity program
would have been made through other apps if the program had not been implemented.).

26. Case Study 1: Delivery Hero (2020)
• Arguments (alleged justifications)
1. “Implemented on a voluntary basis (without coercion)”
• Claimed that ‘the restaurants voluntarily agreed upon the T&C that contained a parity clause
through which the lowest-price-guarantee program was implemented’ (¶55)
• Rejected as, given the context, it was not clear whether they genuinely agreed on the
implementation of the program. (¶56) Furthermore, there was no economic reason to believe so,
considering the profitability of differentiation. Indeed, some restaurants did not follow the program
and were sanctioned by Delivery Hero (¶57)
2. “Needed for the prevention of free-riding and prevailed in the industry” (¶58)
• Rejected as it is unlikely that the free-riding problem takes place in the case of the food delivery
service (hotels ≠ restaurants), such an intention was not found in the evidence submitted, and there
were less restrictive measures to achieve that goal (¶ 59). Also, the parity obligation was not an
ancillary restraint for providing the service, and not prevailed in the industry (considering several
precedents in Europe) (¶ 60)
26

27. Case Study 1: Delivery Hero (2020)
• Arguments (and justifications)
1. “Implemented on a voluntary basis (without coercion)”
2. “Needed for the prevention of free-riding and prevailed in the industry” (¶58)
3. “Outweighed by pro-competitive effects (justifications)”
• Claimed that ‘the program generated new sales, and reduced transaction costs, resulting in an
increase in consumer benefits’ (¶ 61)
• Rejected because …
the increase in sales via Yogiyo cannot be equated with the increase in total sales (uncertain);
the practice in question may have led to the loss of opportunity for consumers to buy food
at lower prices by eliminating price competition between different channels; and
the practice in question may have been able to raise prices on other sales channels (¶ 62)
27

28. Case Study 1: Delivery Hero (2020)
• Conclusion
• Violation of the Art. 45(1)(6) (then, Art. 23(1)(4))
• Cease, desist order & administrative fine of ₩ 468 million* (circa ¥ 49 million)
* which reflected the gravity and duration of the infringement (3.5 years)
• Follow-on criminal action
• The KFTC made a criminal referral to the criminal authority
• At the request of the Ministry of SMEs and Startups
• The Seoul Central District Prosecutors' Office
had sought a criminal monetary penalty of ₩ 50 million
• But the Court acquitted Delivery Hero (“intention X”)
28
(Source: Chosun Ilbo, Sep 15, 2022)

29. Case Study 1: Delivery Hero (2020)
• Discussions
• Power – Relevant, effective, efficient and coherent in finding (a platform’s) anti-competitive power
• UK CMA’s defeat in Compare The Market (esp. errored in the market definition)
• Abuse – Raising several questions, esp. in terms of relevance, coherence or legitimacy
1. Are coercive practices by their nature anti-competitive? (where’s harm to competitive process?)
i.e., the necessity of analysis of dynamic effects of exploitative practices (e.g., Facebook)
2. If Delivery Hero had imposed narrow MFNs, would they have also been ASBP?
i.e., the problem of the ‘choice’or ‘economic freedom’ oriented approach
3. To what extent and how critically can moral aspects be considered in ASBP cases?
i.e., the doer’s unjust intention (moral opprobrium), the need for the protection of SMEs, etc.
problematic, esp. in the non-bifurcated enforcement model (the risk of excessive discretion).
4. Can this case give any useful guidance for companies to perform self-assessments?
i.e., the legal certainty, clarity, and predictability
29

30. Case Study 1: Delivery Hero (2020)
• Discussions
• What if the KFTC had relied on the sales restrictions (‘拘束條件附去來’) provision*?
* Art. 45(1)(7) MRFTA (ED 7) (i.e., the Korean equivalent of ‘拘束条件付取引’ of GD 12)
• Comparison with Japan’s Booking.com (2022) (commitments) cases
1. Facts
Booking.com engaged in the price parity (MFN) agreements with accommodation operators like hotels (i.e.,
‘required them to comply the clause’), and such conduct (excluding restrictions upon sales through their direct
sales channels – narrow MFN) was accused of violating the AMA
2. Statute
Art. 19; GD 12 – the prohibition on restrictive conditions (with the effect of lessening competition)
3. Effects
Allegedly, the price parity (MFN) agreements (excluding the narrow scope) had the effect of discouraging
price competition between similar platforms by making accommodation operators offer the same prices on
every platform
4. Conclusion (remedies)
Booking.com committed to removing the existing conditions and will not engage in the same practice
30

31. Case Study 2: Coupang (2021)
31
• Addressee Coupang, in the online shopping market 1 (principally on mobile)
dubbed “Amazon of Korea” (having the same model as AMZ)
subject to a specific stronger regulation for ‘large retailers’ in KR 2
• Competitors NAVER, , , Auction, GS HomeShopping, Wemakeprice
Offline retailers …
• Structure (shares by volume of sales, transactions, and users)
1. In the decision, the online shopping services were regarded to have two models: (i) inventory-based model (e.g., Coupang) and (ii) intermediary platform model (e.g., Naver) (¶3). Such
a classification, however, does not play any significant role in the authority’s assessment.
(Act on Fair Transactions in Large Retail Business) (often cited as “ ”)
2. 대규모유통업에서의 거래 공정화에 관한 법률 大規模流通業法
SALES
(Online)
TRANSACTIONS
(Online)
VISITORS
(PC)
VISITORS
(mobile)
LOYALTY USERS
(mobile)
1 Coupang NAVER Coupang Coupang
2 GS Coupang Auction NAVER
3 Lotte Auction·GMarket Wemakeprice
4 Home&Shopping Coupang Wemakeprice

32. Case Study 2: Coupang (2021)
32
• Structure
Consumers
Coupang
NAVER
Suppliers
"Dynamic pricing“ (¶¶17-21)
(the lowest-price-matching policy)
(countervailing power argument)
“We have no power over the 8 big players1”
1. The name of the companies are concealed in the decision (para 48) but can be found at https://www.korea.kr/news/policyNewsView.do?newsId=156466934.
To minimize margin losses
Coupang forced its partners to match
(low) prices applied in other competing
sales channels to (high) prices applied
to products sold via Coupang (¶23)
During 2017-2020
101 suppliers, 360 products affected
(¶¶23-24)
* Also, forcing advertisements, foisting
promotion costs, and extracting sales
incentives – outside the MRFTA

33. 33
Case Study 2: Coupang (2021)
The KFTC’s Decision of 23 September 2021, No. 2021-237 (LINK)
• Position (superior bargaining position)
1. Market status and market position
• Considered: its rapid growth compared to others (¶34); its position becoming more entrenched, especially
in mobile markets (¶35).
2. Coupang’s importance and continued relationship
• For suppliers, the sales generated from transactions with Coupang were important* and suppliers are
willing to (eager to) continue the relationship with Coupang (¶36).
(* No data on how important they were. Specific figures were given only for the 8 big suppliers over whom
Coupang claimed to have no asymmetric power (1-10%, Table 16))
3. Absence of (feasible) alternatives
• Suppliers’ lack of feasible alternatives (as opposed to Coupang) (¶37) (* No more description)
4. Inherent differences in business capabilities
• (* Not bout size, but about) Structural, inherent asymmetries between retailers and suppliers,
which are proved by the fact that suppliers were not able to reject the retailer’s offer (¶38)

34. • Abuse (Re. unfairness (“公正去來沮害性”))
• Type: interference with other’s operating activities (“經營干涉” at Guidelines V. 6. E.)
1. Restriction on economic freedom (¶41, ¶43)
• Coupang's conduct, which affected 360 products, and 101 suppliers (¶39),* infringed on the
suppliers' rights to business freedom
(* Not clear if these were considered to assess the conduct’s structural effect – i.e., the trade/competition order)
2. Miscellaneous
• Due to Coupang’s policy, there was a concern that the relationship between suppliers and other
retailers (i.e., Coupang’s competitors) deteriorate (¶44)
(* Not clear if this paragraph was intended to consider the policy’s impact on horizontal competitors.)
• Coupang’s conduct impaired the price competition between online sales,
likely to cause harm to consumer welfare, generating no or little efficiency gains (¶45)
34
1. See note 51. The KFTC saw that the total amount of demands remained the same because the increase in orders through Yogiyo due to the parity program
would have been made through other apps if the program had not been implemented.).
Case Study 2: Coupang (2021)

35. • Arguments (against the KFTC’s finding on the position)
• Countervailing bargaining power
• Coupang claimed: Especially in the case of the 8 big suppliers, each of them held a monopolistic position
in a relevant product market, and they were less dependent on the sales from Coupang. Moreover, as
Coupang needed their popular products for 'display completeness,' Coupang was inferior to them. (¶48)
• Rejected because…
• ‘In order [for the authority] to establish the superior position of ‘large retailers,’
it is sufficient [for the authority] to show that the worth (i.e., ‘meaningfulness’) of trading with the
retailer in the supplier's business is significant, even if the suppliers hold significant market positions in
relevant markets.’* (¶281 and ¶50)
• ‘It is not required to establish one’s superior bargaining position by assessing each individual transaction
with each supplier if there are common features stemming from peculiarities of the relationship between
the large retailer and a lot of suppliers, and if they can attest to the large retailer's superiority.’* (¶29,2 ¶51)
(* The KFTC relied on some precedents in which the addressees were subject to the special regulatory obligations under
the Act on Fair Transactions in Large Retail Business, “LR Regulation”)
• Inherent differences in business capabilities can be inferred from the fact the same was required for the
large suppliers and they accepted (¶51)
35
1. Seoul High Court Decision 2017Nu60071 delivered on Apr 19, 2018 (Sinsege). https://competition.tistory.com/entry/Sinsege20180419.
2. Seoul High Court Decision 2017Nu86226 delivered on Feb 13, 2019 (Seowon) https://competition.tistory.com/entry/Seowon20190213.
Case Study 2: Coupang (2021)

36. • Conclusion
• Violation of the Art. 45(1)(6) (then, Art. 23(1)(4)) (as well as the LR Regulation) 1
• Cease, desist order & adm. fine of ₩ 1,360 million won (¶107)* (circa ¥ 141 million)
* which reflected the gravity and duration of the infringement of the MRFTA (¶99)
• Appeal
• (no criminal referral)
• Coupang has appealed the decision, and
the case is pending before the Seoul High Court
36
(Source: MBN, Feb 24, 2022)
Case Study 2: Coupang (2021)
1. The following conducts fell into the scope of the Regulation: forced suppliers to display advertisements on their products (53-65); foisted promotion
costs upon suppliers (66-88); extracted sales incentives that were not included in the annual contracts (89-97).

37. • Discussions (Questions)
• Can the KFTC’s failure to assess the countervailing power be justified? (Hwang Lee (2016)) 1
• despite the limited importance (dependency) of the sales from Coupang esp. for 8 firms,
despite the 8 firms’ objective market power and great business capabilities
• Repeat: Structural power (competition concerns) ≠ situational power (contractual concerns)
• Are the disputes competition concerns?
• market failure (competition concerns) ≠ contract failure (contractual/regulatory concerns)
• Isn’t the KFTC’s analysis of unfairness too truncated, simplified or formalistic?
• Such a rule-of-thumb approach (similar to Toys“R”Us (トイザらス)?) is doubtful and groundless 2
• In this case, the MRFTA was applied (alongside the LR Regulation)
because the ‘requiring price matching’ practice was not regulated under the Regulation
(under which the superiority is presumed, the assessment standards are much relaxed)
• Noteworthy, however, that the MRFTA requires a full-scale analysis in principle
37
Case Study 2: Coupang (2021)
1. Hwang Lee, ‘Concept and Criteria of 'Superior Bargaining Position' in Korean Competition Laws’ (2016) 51 Journal of Legislation Research 39
https://bit.ly/3SYkN5o (“The author argues for the need for comprehensive and dynamic criteria. SBP tends to be different per each fact settings and in-
depth observation and economic analysis is essential to incorporate the dynamics. One should be reminded that the determination of SBP is required to
find whether each of trade parties has balanced bargaining power and ultimately the regulation is to prevent hold-up occurred. ... other relevant factors
including outside option and countervailing power should be assessed.”)
2. In my think, what can be inferred from the acceptance is not the presence of the position/power but the causal relationship between power and abuse.

38. • Discussions (Questions)
• Reference case – Japan’s Rakuten (2021) (closed)1
1. Facts
Rakuten, an online shopping service provider, was alleged to have foisted shipping costs upon sellers to implement
the ‘free shipping service’(erga omnes) and to penalize (threaten to penalize) some sellers for their non-compliance
by imposing unfavorable conditions on them, especially in terms of rankings in search results and renewal of
contracts.
2. Statute
Art. 19 with Art. 2(9)(v)(c) – the prohibition of disadvantaging counterparties by exploiting one’s superior bargaining
position vis-à-vis the parties (Q. How much dependent? No countervailing power? No feasible alternatives –
Amazon, Yahoo! Japan, etc. – at all?)
3. Disadvantages
Sellers’ freedom was infringed (Q. How much matters?); Non-participant sellers’ revenue decreased as they attached
the shipping prices; Non-participant sellers were placed at a competitive disadvantage (Q. No matter how the
competition between platforms is significantly affected? What about efficiency gains, consumer benefits, and other
justifications?)
4. Conclusion (remedies)
The case has been closed after Rakuten’s pledged some voluntary measures
38
Case Study 2: Coupang (2021)
1. For more details, see , ' - 3 12 6 '
( 64 ) (2022)
早川雄一郎 楽天の「共通の送料込みライン」に係る独禁法違反被疑事件 公正取引委員会令和 ・ ・ 公表 独占禁止法判
例研究 会第 回

39. 39
CONCLUDING REMARKS

40. Concluding Remarks (further questions)
40
• To find the optimal, the following questions2 are worth being answered:
• Relevant? – Does the ASBP Enf serve the screening function (objective) of power and abuse?
* Structural relativity (not situational, trivial); market failure (as opposed to contract/bargaining failure)
• Effective? – Does the ASBP Enf effectively contribute to achieving the objective?
* Tackling abusive practices by digital platforms; redressing conflicts in captive vertical value chains
• Efficient? – Does the ASBP Enf make the achievement possible with minimum costs?
* Resource savings in defining the relevant market; increasing the chances of winning the cases; self-assessment?
• Coherent? – Is the ASBP Enf consonant, consistent with other existing competition rules?
* Dominance and dependence?; anti-competitiveness or moral opprobrium (mala in se?)…
Too much intervention?1 or too little?
1. For several challenges that the KFTC face, regarding the ASBP enforcement, see Yong Lim and Soojin Nam, ‘Bringing Abuse of Superior Bargaining
Position into the Digital Era’ (ASCOLA Asia Online Seminar May 30, 2022) https://1drv.ms/v/s!Aj4guqEY12qGuWm7Of5JHcjsRCRy?e=1ZrqSA.
2. European Commission, ‘Better Regulation Guidelines’ (Staff Working Document) SWD(2021) 305 final.

41. 41
THANK YOU
감사합니다 / どうもありがとうございました
Sangyun Lee (李相潤)
sangyunl@korea.ac.kr